This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP208-CR

Cir. Ct. No.2009CF465

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

State of Wisconsin,

Plaintiff-Respondent,

v.

Andrew J. Wirth,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Jefferson County:jennifer
l. weston, Judge.Affirmed.

Before Lundsten, P.J., Higginbotham and Blanchard, JJ.

¶1HIGGINBOTHAM, J. Andrew J. Wirth appeals a
judgment of conviction entered on a jury’s verdict finding him guilty of two
counts of homicide by negligent handling of a dangerous weapon and an order
denying his motion for postconviction relief.The issue presented is whether the circuit court erroneously exercised
its discretion in admitting other acts evidence.We need not reach this issue because we
conclude that, assuming without deciding that the court erred, such error was
harmless.Accordingly, we affirm.

BACKGROUND

¶2Wirth was charged with two counts of first-degree intentional
homicide for the deaths of Gregg Peters and Jennifer Luick following a
confrontation at Vinnie’s Rock Bottom Saloon in Jefferson.

¶3The following facts are taken from the trial.Before going to Vinnie’s Rock Bottom Saloon,
Wirth and a friend went to the Filling Station Bar in Fort Atkinson. While there, Wirth got into a confrontation
with a patron of the bar, Scott Zins. Wirth
and Zins dispute what started the confrontation.Regardless how the confrontation began, it is
undisputed that Wirth grabbed Zins by the throat and pushed him into a wall,
causing the drywall to crack.Wirth was
asked to leave the bar.

¶4Wirth and his friend drove to Vinnie’s Rock Bottom Saloon in
Jefferson.Soon after arriving, Luick
approached Wirth from behind and, according to Wirth, “grabbed his ass” and
pushed her finger “towards the crack of [his] butt.”Wirth became upset and irritated and told
Luick, “[D]on’t fucking touch me.” Wirth
claimed that Luick seemed very upset by his strong reaction to her “grabbing”
action.Shortly after, Luick’s
boyfriend, Peters, approached Wirth, tapped him on the shoulder, and asked him
to go outside.Once outside, Peters told
Wirth to apologize to Luick, who was standing next to Wirth.Wirth refused to apologize.Peters took a step closer to Wirth, coming
within two feet of Wirth’s face.Peters
lifted his left arm as if to touch Wirth and, according to Wirth, reached
behind his back.Wirth testified that Peters’
movements led Wirth to believe that Peters was going to pull out a knife and
stab him.Wirth grabbed Peters by the
throat with his left hand, pulled out his loaded gun with his right hand and
pointed the gun at Peters’ head.Wirth
discharged three rounds from his gun: one round struck Peters’ chest, resulting
in his death; one round grazed Peters’ neck and struck Luick’s chest, resulting
in her death.Wirth claimed that he
could not recall shooting the gun but “figured [Peters] was shot.” Wirth did not believe that anyone else had
been shot.

¶5Wirth fled the scene. Later
that night, after Wirth left a friend’s house with, Wirth alleged at trial, the
intent to turn himself in to the police, the police stopped and arrested him. Following his arrest, Wirth was questioned by
police who later informed him that Peters and Luick had died.

¶6Prior to trial, the State moved for the admission of other
acts evidence, specifically, evidence regarding the earlier confrontation at
the Filling Station Bar, which ended in Wirth grabbing a bar patron by the throat
and pushing him into a wall. The court
admitted the other acts evidence under the three-part analytical framework of State
v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998), based on
the following reasoning: (1) the other acts evidence was offered for the
permissible purpose of establishing Wirth’s state of mind at the time of the
shootings and to rebut the defense’s theory that Wirth acted in self-defense;
(2) the other acts evidence was relevant; and (3) the probative value
of the other acts evidence was not substantially outweighed by the danger of
unfair prejudice.

¶7At trial, the parties did not dispute that Wirth discharged
the gun three times or that Peters and Luick died as a result of Wirth’s firing
the gun. The central dispute at trial
was whether Wirth acted in self-defense.

¶8At the close of evidence, the court instructed the jury on
first-degree intentional homicide as well as four lesser included crimes—second-degree intentional homicide, first-
and second-degree reckless homicide, and homicide by negligent handling of a
dangerous weapon.The court instructed
the jury to consider the privilege of self-defense in deciding “which crime, if
any, the defendant has committed.” The
jury found Wirth guilty of two counts of homicide by negligent handling of a
dangerous weapon, and the court denied Wirth’s postconviction motion for
relief.Wirth appeals.

DISCUSSION

¶9Wirth contends that the trial court erroneously admitted evidence
relating to the Filling Station Bar incident as other acts evidence.However, we need not resolve Wirth’s
challenge to the Filling Station Bar evidence because we conclude, assuming
without deciding that the court erroneously exercised its discretion in
admitting this evidence, that the error was harmless.

¶10It is well established that, “[e]rror in admitting other acts
evidence is subject to harmless error analysis.” State v. Thoms, 228 Wis. 2d
868, 873, 599 N.W.2d 84 (Ct. App. 1999).An error is harmless if the beneficiary, here the State, proves “beyond
a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” State v. Harris, 2008 WI
15, ¶42, 307 Wis. 2d 555, 745 N.W.2d 397.In alternative wording, an error is harmless when it is “clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the error.”Id., ¶43.To determine whether the error contributed to
the verdict, we must consider the error in the context of the entire trial
record.See State v. Patricia A.M.,
176 Wis. 2d 542, 556-57, 500 N.W.2d 289 (1993).

¶11Wirth contends that the admission of the other acts evidence
was not harmless because the jury may have concluded based on that evidence that
“Wirth was a violent man who deserved to be found guilty.”According to Wirth, the admission of evidence
showing Wirth’s propensity for violence had a great danger of influencing the
jury’s thinking on whether he acted in self-defense.The State responds that there is no reason to
believe the admission of the other acts evidence influenced the jury’s decision
because “the amount of evidence against [Wirth] was overwhelming and
substantial.” We agree with the State.

¶12To prove homicide by negligent handling of a weapon, the State
was required to show that: (1) Wirth operated or handled[1]
a dangerous weapon; (2) Wirth operated or handled a dangerous weapon in a
manner constituting criminal negligence; and (3) Wirth’s operation or
handling of a dangerous weapon caused the deaths of Peters and Luick.See Wis. Stat. § 940.08(1) (2011-12)[2];
Wis JI—Criminal 1175.There is no dispute that Wirth operated and handled
a dangerous weapon, his gun, and that Wirth caused the deaths of Peters and
Luick.The question, then, turns to
whether Wirth operated or handled the weapon in a manner constituting criminal
negligence.

¶13To prove criminal negligence, the State was required to show
that: (a) Wirth’s operation or handling of a dangerous weapon created a
risk of death or great bodily harm; (b) the risk of death or great bodily
harm was unreasonable and substantial; and (c) Wirth should have been
aware that his operation or handling of a dangerous weapon created the
unreasonable and substantial risk of death or great bodily harm.See Wis. Stat. § 939.25(1); Wis JI—Criminal 1175.We address each element in turn.

A.Operating or Handling of a Dangerous Weapon Creating a
Risk of Death or Great Bodily Harm

¶14It is undisputed that Wirth aimed his gun at Peters from close
range and discharged three rounds, and that one round entered Peters’ chest,
resulting in his death.It is also
undisputed that Wirth discharged one round from his gun that grazed Peters’
neck and entered Luick’s chest, resulting in her death.Wirth testified that he did not know where
Luick was standing when he discharged his gun at Peters.This evidence plainly establishes that
Wirth’s operation and handling of his
gun, as defined above, not only created a risk of death or great bodily harm,
but, in fact, caused the deaths of two people.

B.Substantial and Unreasonable Risk of Death or Great
Bodily Harm

¶15An unreasonable and substantial risk of death or great bodily
harm exists when the negligent conduct “create[s] a risk of serious
consequences, e.g., death or great bodily harm” and there is a “‘high
probability that the [serious] consequences will result from’ the
conduct.”State v. Schutte, 2006 WI
App 135, ¶21, 295 Wis. 2d 256, 720 N.W.2d 469 (quoted source omitted).Importantly, the risk that death or great
bodily harm will result from the conduct must be greater than that which is
required to find ordinary negligence in a civil case.Id. The probability that death or great bodily
harm will result from the conduct must be “considered great by the ordinary
person, having in mind all the
circumstances of the case, including the seriousness of the probable
consequences.”Id.

¶16Here, the same evidence that establishes the first element of
criminal negligence supports the element that the risk of death or great bodily
harm was unreasonable and substantial.As
we have established, it is undisputed that Wirth pointed and discharged his gun
at Peters’ neck and chest and that this resulted in the deaths of Peters and
Luick.Considered alone, this evidence
plainly establishes that the manner by which Wirth operated and handled his gun
created an unreasonable and substantial risk of death.However, we must consider the evidence in
relation to Wirth’s claim that he acted in self-defense to determine whether
the risk of death or great bodily harm was unreasonable and substantial under
the circumstances.

¶17We begin with the jury instructions on the privilege of
self-defense.A defendant may threaten
or intentionally use force against another only if: (1) he or she believed
that there was an unlawful interference; (2) he or she believed that the
amount of force used was necessary to prevent or terminate the unlawful
interference; and (3) his or her beliefs were reasonable.Wis
JI—Criminal 805; see also State v. Camacho, 176 Wis. 2d
860, 869-70, 501 N.W.2d 380 (1993).

¶18We next consider the evidence surrounding the circumstances of
the shooting to determine the strength of Wirth’s self-defense claim.

¶19On the night of the shooting, Wirth was at Vinnie’s Rock Bottom
Saloon with a friend for some drinks. Shortly
after arriving at the saloon, Luick, according to Wirth, “grabbed”[3]
his butt and moved her finger toward the “crack of [his] butt.” Wirth became angry and irritated and told
Luick to not “fucking touch [him].” According
to Wirth, Luick was upset by Wirth’s reaction to her touching him and walked
away angry. A few minutes later, Peters
approached Wirth, tapped Wirth on the shoulder, and asked him to step outside. Wirth surmised that Peters wanted to talk with
him about Luick’s grabbing action and he followed Peters outside the bar. Wirth walked outside, with Peters walking in
front of him and Luick behind him.Once
outside, Wirth was boxed in, with Peters standing in front of Wirth and Luick
standing to Wirth’s right. Peters told
Wirth to apologize to Luick. Wirth
refused to do so because, he testified, he “didn’t do anything wrong.” Tensions between the two men quickly
escalated.

¶20Wirth testified that after he refused Peters’ demand to apologize
to Luick, Peters moved toward Wirth, while lifting his left arm as if to touch
Wirth and moving his right arm behind his back. Wirth believed that Peters was reaching for a
knife when Peters reached behind his back. Wirth claimed that he pulled out his gun and
pointed it at Peters’ head in order to prevent Peters from stabbing him. Wirth testified that he never saw Peters with
a knife and the record shows that no knife was found on Peters or at the crime
scene. At that point, Wirth testified,
he “blacked-out” such that he could not remember anything that happened until
his friend walked out of the bar.At
that point, he “snapped into it,” and saw that the hammer on his gun was cocked
back, indicating to him that he had fired the gun.

¶21Wirth’s own account of the shooting incident undermines his
claim that he was acting in self-defense.As we indicated, Wirth testified that he never saw a knife.Rather than wait until he saw a knife, or whatever
else Peters might have been reaching for, if anything, Wirth chose to reach for
his gun, point it at Peters’ head and discharge the weapon at Peters three
times.There is no evidence, even from
Wirth, that Peters had a weapon or that Peters struck out at Wirth in any
fashion.All the jury had was Wirth’s
unsupported statement of belief that Peters had a knife behind his back and was
reaching for it. In our view, Wirth
presented no evidence from which a jury could reasonably find that shooting Peters
in the neck and in the chest was necessary to prevent or terminate Peters’
alleged unlawful interference.

¶22However, there is strong evidence to support the State’s
position that Wirth was not acting in self-defense when he shot and killed
Peters and Luick.A patron of Vinnie’s
Rock Bottom Saloon who witnessed the end of the confrontation testified that he
observed Wirth point the gun at Peters’ neck using his right hand, while Wirth held
on to Peters in Peters’ chest area with his left hand.The patron testified that he heard Wirth say
to Peters twice while holding the gun to Peters’ neck, “[S]top being so fucking
stupid.” The patron also testified that
he did not observe Peters with a knife.

¶23There was also evidence that Wirth pulled his gun out from his
holster while walking out of the bar and not when Peters allegedly confronted
Wirth after Wirth refused Peters’ request that Wirth apologize to Luick.The holster was found by a bar patron near
the front door to the bar. The
confrontation occurred along the wall of the building housing the bar, to the
right of the bar doors. During closing
argument, the State argued that this suggested that Wirth pulled out the gun
before Peters confronted Wirth.

¶24There was other evidence that the jury heard that undermined
Wirth’s self-defense claim.At trial,
Wirth conceded that he first claimed to be acting in self-defense after the
police informed him that two people had been injured during the confrontation,
although he had the opportunity to tell three of his friends and his parents,
all of whom he talked to prior to being arrested.The jury heard evidence that when police
first questioned Wirth about what had happened to cause the confrontation,
Wirth told police that, “mother fucker tried touching me, life happens” and
that Peters “want[ed] to fuck with me, that’s life.”These statements suggest that Wirth pointed
his gun at Peters based on the fact that Peters had upset him by attempting to
touch him and do not support a reasonable inference that Wirth reasonably
believed that the amount of force he used was necessary to prevent an unlawful
interference.

¶25Testimony from a volunteer emergency medical technician for the
City of Jefferson was additionally damaging to Wirth’s self-defense claim.Robert DeWolfe testified that, upon his
arrival at the bar following a dispatch of a possible stabbing there, he
attended to Peters, who was lying on the floor of the bar between the inside
and the outside doors to the bar.He
testified that Peters told him that, “He shot me three times.I begged him not to, but he shot me three
times.”This evidence stands in stark
contrast to Wirth’s assertion that he shot Peters in self-defense.

¶26Finally, Wirth’s self-defense claim is undermined by a
reasonable inference of consciousness of guilt.Wirth testified at trial that he fled the scene of the crime and did not
immediately turn himself in to the police.Although Wirth indicated that he had later decided that he would turn
himself in to the police, and that he was on his way to the police station to
do so when he was stopped by a police officer, there was reason to discredit
this testimony.As the State points out,
Wirth had driven by three police stations before he was stopped and
arrested.Wirth had an opportunity to
turn himself in to the police after fleeing the scene of the crime, but did not
do so.The jury could have understood
this testimony as undermining his claim of self-defense.

C.Objective Standard

¶27Finally, we address whether, under the facts of this case,
Wirth should have been aware that his operation and handling of a dangerous
weapon created an unreasonable and substantial risk of death or great bodily
harm. The standard for criminal negligence is an objective one, in which “a
defendant’s acts are measured against whether a normally prudent person under
the same circumstances should reasonably have foreseen” that his or her conduct
created an unreasonable and substantial risk of death or great bodily
harm.State v. Barman, 183
Wis. 2d 180, 199, 515 N.W.2d 493 (Ct. App. 1994).

¶28We conclude that the evidence plainly established that a normally
prudent person should reasonably have foreseen that the conduct displayed by
Wirth created a substantial and unreasonable risk of death or great bodily
harm.Wirth, acting as a normally
prudent person, would have foreseen that a loaded and dangerous weapon, when
handled in the way that Wirth did, had the capacity to kill or cause great
bodily harm to another.A normally
prudent person would be aware that taking out a loaded gun during a
confrontation and pointing it directly at another person’s head while others
are nearby carries an unreasonable and substantial risk of death or great
bodily harm to anyone in the area where the confrontation took place.

¶29Here, Wirth was standing directly in front of Peters with his
gun pointed at Peters’ head.Wirth was
aware that Luick was in the area when the three of them walked out of the
bar.Wirth testified that Luick stood to
his right, boxing him in, but that he lost sight of Luick after pointing his
gun at Peters. A reasonable person, under these circumstances, would have
foreseen that operating and handling a gun in the manner that Wirth did here
would create an unreasonable and substantial risk of death to anyone in the
vicinity of the confrontation.

¶30In sum, the only significant dispute at trial was whether Wirth
acted in self-defense.As we have
explained, the evidence showing that Wirth operated and handled the weapon in a
manner constituting criminal negligence, and not in self-defense, was
overwhelming.When we view the other acts
evidence of the altercation at the Filling Station Bar in the context of the
entire trial, it is clear beyond a reasonable doubt that a rational jury would
have found Wirth guilty even if the other acts evidence had been excluded. For that reason, we affirm.

By the Court.—Judgment affirmed.

Not
recommended for publication in the official reports.

[1] “Operate”
and “handle” have been defined by the Wisconsin Supreme Court, adopting
dictionary definitions for each word, in a case involving a charge of homicide
by negligent handling of a dangerous weapon.“Operate” is defined as “[t]o perform a function; work ….To control the functioning of; run: operate a sewing machine….”“Handle” is defined as “[t]o operate with the
hands; manipulate.”State v. Bodoh, 226 Wis.
2d 718, 730-31, 595 N.W.2d 330 (1999) (quoting The
American Heritage Dictionary of the English Languageat 1268, 819 (3d ed. 1992)).

[2]All references to the Wisconsin Statutes are
to the 2011-12 version unless otherwise noted.

[3] Two
of Luick’s friends who were at Vinnie’s Rock Bottom Saloon on the night of the
shooting testified that Luick was in a very good mood, and that lightly
“pinching” the butts of the other patrons, whether she knew them or not, was
her way of expressing her good mood.